Hardly a week goes by that someone does not ask me “What can I do if a drone flies or hovers over my property?” or the converse, “What restrictions are there on my operation of a drone over private property?”.

From inexpensive toys to advanced recording equipment, drones are now being used throughout both residential neighborhoods and commercial spaces. However, the legality of drone usage over private property has become somewhat muddled. Many drone owners aren’t certain whether their drone or drones can fly in private airspace — while homeowners and business owners are perplexed by their options.

Most Laws Implicated by Hovering Over Private Property Are Not Drone Specific

Widespread drone usage is a relatively new phenomenon. Although some state and local governments have enacted laws regulating drone usage, in many areas of the United States there are few if any state or local laws regulating drone usage. Because of this, most legal issues regarding drones are based on case law decided long before drones became an issue. In other words, a neighbor or a drone operator is not likely to get a definitive answer regarding whether their drone usage is legal.

Drones with cameras may be found to be invasions of privacy. Though it is legal to use a camera in a public space, filming someone in the privacy of their own home (such as through their window) where a person has a reasonable expectation of privacy is generally not legal. Thus, though the action of “using a drone and a camera” might not be illegal, using it in certain ways can be.

Drones may be considered to be a private nuisance. A drone that is repeatedly “buzzing” someone within their yard or is found to be hovering close to their home could be considered a nuisance — or even considered to be harassment if the individual is being targeted. Again, in this case it is not the drone itself that is illegal, but the actions being taken with the drone.

Drones, like any tool, they can be used in an illegal fashion. The legal system is still playing “catch up” with laws that are directly related to private airspace and drone usage, but many of the potentially harassing, damaging, or frustrating actions that could be taken by drones already are illegal under existing law.

On June 27, a massive ransomware attack now known as “Petya” spread across the globe in a similar fashion to the WannaCry cyberattack in May. In an Alert today, Fox Chief Privacy Officer and Partner Mark McCreary breaks down what we know about the attack, how to address it if your organization falls victim to it, and how to minimize the risks of future attacks:

Yesterday’s worldwide cyberattack once again exploited a vulnerability that has been known to experts for many months. These attacks are sure to continue and the best defense is knowledge. Awareness of how malware works and employee training to avoid the human error that may trigger an infection can prevent your organization from becoming a victim.

This latest ransomware variant, referred to as “Petya,” is similar in many respects to the “WannaCry” ransomware that affected hundreds of thousands of computers in mid-May, using the same Eternal Blue exploit to infect computers. The purpose of this Alert is to provide you some information believed or known at this time.

How Is a Computer Infected?

Experts believe the Petya malware is delivered in a Word document attached to an email. Once initiated by opening the Microsoft Word document, an unprotected computer becomes infected and the entire hard drive on that computer is encrypted by the program. This is notably different from WannaCry, which encrypted only files.

Once Petya is initiated, it begins seeking other unprotected computers in the same network to infect. It is not necessary to open the infected Microsoft Word document on each computer. An infection can occur by the malware spreading through a network environment.

Mark also notes that “I continue to stress to clients that in addition to hardening your IT resources, the absolute best thing your business can do is train employees how to detect and avoid malware and phishing. In-person, annual privacy and security training is the best way to accomplish this.”

Come Senators, Congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’

Bob Dylan – “The Times, They Are A-Changin”

Unless this is your first visit to our blog (and if it is, welcome), you know that we have addressed the tension between the federal government vs. state and local governments regarding regulating drones on several occasions. Because the landscape continues to change, this topic is a hot button issue.

Although the boundaries of federal vs state and local government authority to regulate drone operations remains unclear, state and local governments continue to assert authority to regulate drone operations. Over the last few years, drone operations have increased significantly, and drone operations are expected to increase dramatically over the next few years.

In addition to the Drone Federalism Act recently introduced in the U.S. Senate, a bill was recently introduced in the U.S. House of Representatives titled “Drone Innovation Act of 2017”. Similar to the Drone Federalism Act, the Drone Innovation Act seeks to address the manner in which state, tribal, and local governments can regulate drone operations.

Here are the key points of the Drone Innovation Act (the following is only a summary of the highlights):

No later than six months after enactment, the Secretary of Transportation is required to publish a civil unmanned aircraft local operation policy framework (after consultation with state, local and tribal officials, as well as other stakeholders)

The policy framework shall:

“(1) provide guidelines to aid States, local, and Tribal governments in harmonizing and, to the degree possible, standardizing reasonable time, manner, and place limitations and other restrictions on operations of civil and small unmanned aircraft that are local in nature;

(2) take into account the economic and non-economic benefits, such as civic or educational uses, of small or civil unmanned aircraft operations;

(3) provide guidelines to aid States, local, and Tribal governments in creating an environment that is hospitable to innovation and fosters the rapid integration of unmanned aircraft into the national airspace system; and

(4) aid States, local, and Tribal governments in adopting technologies, such as unmanned traffic management systems, that will enable notification to operators regarding reasonable time, manner, and place limitations on operations of civil and small unmanned aircraft that are local in nature.”

When preparing the policy framework and any future regulations or standards related to unmanned aircraft, the Secretary of Transportation is required to define “the scope of preemptive effect”. The Act requires that any such regulations or standards “be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce, and shall preserve the legitimate interests of State, local, and Tribal governments, including–

(1) protecting public safety;

(2) protecting personal privacy;

(3) protecting property rights;

(4) managing land use; and

(5) restricting nuisances and noise pollution.”

The Act requires the Secretary of Transportation to “abide by and be guided by” several “fundamental principles”. It also requires the Secretary to establish a pilot (I assume no pun intended) program and enter into agreements with a predetermined number of state, local, or tribal governments to provide technical assistance in regulating drones. Within 18 months after the pilot program is established, the Secretary is required to provide a report on best practices for state, local and tribal governments to regulate drones.

The Act prohibits the Secretary from prescribing regulations or standards for drones that authorize the operation of drones less than 200 feet above ground level “where there is a reasonable expectation of privacy without permission of the property owner”.

Moreover, it expressly states that the following causes of action are not preempted: “personal injury, wrongful death, property damage, inverse condemnation, trespass, nuisance or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability under any maritime law, or any Federal, State, or Tribal common law or statutory theory”.

The prohibition on preemption of those causes of action is tempered by the following language: “no cause of action, claim or remedy may be made solely because of the transit of an unmanned aircraft through airspace local in nature over private property in the absence of proof that such transit substantially interfered with the owner or lessee’s use or enjoyment of the property or repeatedly transited the airspace local in nature above the owner’s property”.

The Secretary is prohibited from issuing any rule or regulation that would impede the authority of state, local, or tribal governments to define private property rights as it applies to drones that operate at an altitude less than 200 feet.

State or local governments may not “unreasonably or substantially impede” a drone from reaching navigable airspace. Per the Act, unreasonably or substantially impeding includes:

“(1) outright bans on overflights of the entirety of the lateral boundaries of a State or local government’s jurisdiction;

(2) excessively large prohibitions on overflights of areas of local significance such that access to airspace is so impeded as to make flight within the lateral boundaries of a State or local government’s jurisdiction nearly impossible; and

(3) a combination of restrictions intended to unreasonably impede or having the practical effect of unreasonably impeding the ability of a civil unmanned aircraft from reaching the navigable airspace.”

Finally, nothing in the Act may be construed to affect: manned aircraft operations or the authority of the FAA with respect to the same; the FAA’s right to take emergency action; the FAA’s right to pursue enforcement actions against drone operators; or the right of first responders to access airspace in the event of an emergency.

The Drone Innovation Act is not the first attempt by Congress to address the issue of federal vs. state (including tribal and local) government authority to regulate drone operations. The Act appears to recognize the need to avoid having a checkerboard of varying laws and regulations from locality to locality. Whether the final version of any Congressional act defining federal vs. state authority over drone operations includes this theme remains to be seen.

With the Trump Administration’s focus on jobs and building the economy, it makes perfect sense that it would explore opportunities in one of the fastest growing industries right now: drones. In what may be the first direct outreach to the drone industry, President Trump is scheduled to meet with leaders of several drone companies to discuss the growing industry and the regulatory landscape. According to a White House spokesman, President Trump will see “demonstrations of how these technologies will contribute to the 21st century economy and how the government can ensure that their safe adoption leads to the best possible outcomes for the American worker and American businesses.”

U.S. based companies Kespry, AirMap, Airspace and PrecisionHawk are expected to be in attendance, among others. These companies focus on drone software for such things as mapping and analysis as well as drone security.

Also of note is that this meeting comes a day after the first meeting of the Remote Identification Aviation Rulemaking Committee of the Federal Aviation Administration, which is scheduled to meet on June 21, 2017. This Committee is tasked with creating new standards for remotely identifying and tracking drones. In addition to helping law enforcement with security concerns, remote identification could provide the starting point for an air traffic management system for drones. This could then pave the way for expanded operation of drones, including beyond line of sight, among other expansions that could allow for things like drone delivery.

This increase in activity by the administration in the area of drone technology coupled with the recent announcement of privatization of air traffic control, helps foster the conclusion that expanded operation or additional waivers for commercial use could be coming faster than people anticipate. This administration appears ready to address ways to help the industry grow. We will follow up with any significant developments from these meetings.

Jonathan Ash is a partner in the firm’s Labor & Employment Department, resident in its Princeton office.

The challenge presented by having federal, state and local authorities all attempting to regulate drones is a topic we have addressed on this blog and in other publications (see links below). Unfortunately, a solution to that challenge remains elusive.

State and local authorities continue to assert that they possess the authority to regulate drones. That position, coupled with the current state of the federal regulatory process , has now been further complicated by the introduction of the Drone Federalism Act of 2017 (“Drone Federalism Act” or “Act”) also known as S. 1272, which was recently introduced in the U.S. Senate by Senator Feinstein.

If enacted, the Drone Federalism Act will amend Section 336 of the FAA Modernization and Reform Act and will provide states broad rights to regulate drone operations. It requires the FAA Administrator to not only define the preemptive effect of federal regulations regarding unmanned aircraft operations, but it also requires the Administrator to: “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including— (A) protecting public safety; (B) protecting personal privacy; (C) protecting property rights; (D) managing land use; and (E) restricting nuisances and noise pollution.”

The Drone Federalism Act also requires the Administrator, when enacting regulations or standards regarding drones, to “ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.”

The Act specifically states that “reasonable restrictions” include:

Limitations on speed

Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property;

Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events;

Prohibitions on operations while the operator is under the influence of drugs or alcohol;

Prohibitions on careless or reckless operations; and

Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

If enacted, the Act will only lead to a further patchwork of state and local laws, making compliance for drone operators exceedingly difficult. We have addressed some of those concerns in other writings.

Recently, several members of my Firm and I had the opportunity to speak on a panel at the New York City Drone Film Festival (“NYCDFF”) regarding legal issues and drones. Thanks to the excellent moderation of Randy Slavin, the founder of the NYCDFF, we had the opportunity to discuss several legal issues. While the presentation was directed to attendees of the NYCDFF, the discussion encompassed a fairly wide breadth of legal issues. Among the issues discussed are the current state of drone regulations, first amendment issues, liability issues, intellectual property, drone cinematography, releases, and insurance issues. I recommend anyone who is interested to watch the video of the panel presentation. Also, if you are not familiar with the NYCDFF, I highly recommend checking it out.

On March 18, Fox attorneys Mark Connot, Brian Rothery, Christopher Beall and Imraan Farukhi participated in a panel discussion entitled “Up in the Air: 2017 Drone Law Update” as part of the Third Annual New York City Drone Film Festival. The festival is “the world’s first event exclusively dedicated to celebrating the art of drone cinematography,” and offers an international platform for filmmakers from around the world to exhibit their work for the drone community and the film industry.

Recently I had the opportunity to speak to a college class regarding public perception and policy regarding drones and other autonomous vehicles. In preparing for my presentation, I realized several things that I already knew, but had not really thought about it.

In considering how best to provide an overview of how quickly technology is adapted once people understand its capabilities, it dawned on me that today’s college students have only known a world with smart phones. The first iPhone was introduced in June of 2007, when most college students were in elementary school.

In contrasting the public’s quick adoption of smartphones with the public’s far slower openness to drone technology, I asked the students to ponder how successful the iPhone would have been if only a handful of apps were available for the first few years after the iPhone’s introduction. In essence, even if smart phones were capable of supporting millions of varied applications, if the apps themselves were unavailable, the success of smart phones would have been in peril.

Okay, you say, I get that this is public perception, but how does it relate to policy? Until the public recognizes a tangible benefit from technology, it tends to be apprehensive of the technology.

In 1900, there were 8,000 automobiles in the United States. By 1920, that number had grown to 8,000,000. A large part of the increase is due to lowered production costs as a result of Henry Ford’s assembly line, but another factor was the public’s increasing understanding of the fact that automobiles could have a positive impact on their lives.

In other words, both decreased cost as well as the recognition of a tangible benefit resulted in the public embracing new technology. The public’s newfound perception of automobiles as positive, rather than negative, then helped to shape policy, such as increasing the 5 mph speed limit, enacting gasoline taxes to fund roads, creating parking lots, etc.

If the public had not embraced automobiles and airplanes, those industries would not have enjoyed the success they have, at least not in the timeframe in which it occurred. Without roads and other infrastructure, the public’s eagerness to embrace automobiles would have been stymied. Without airports and regulations to ensure safe flights, as well as the ability to fly long distances, airlines would have struggled to succeed.

Until the FAA permits beyond visual line of sight (“BVLOS”) operation of drones, the public has no idea of the capabilities of drones and the myriad of ways in which their lives will be positively impacted by drones. However, when BVLOS is permitted, I predict the public will quickly comprehend the significant positive impact of drones and embrace the technology.

When will I be able to fly beyond visual line of sight? When will I be able to operate a drone over people?

In the world of drone law (and in the world of drones in general), hardly a week, or even a day, passes without one or both of those questions being asked.

The drone industry welcomed the long-awaited drone regulations of Part 107, which became effective in August of 2016. However, that only whetted our appetite for more.

The current presidential administration’s public pronouncements regarding scaling back government regulations creates a concern within the commercial drone industry. Contrary to most industries, in the commercial drone industry more regulations are necessary for the drone industry to advance. Targeted regulations that permit and define the parameters of beyond visual line of sight operations, flights over people, and nighttime operations will enable the drone industry to reach its potential.

Recently the Small UAV Coalition sent a letter to the new Director of the Office of Management and Budget requesting a limited waiver from the moratorium on new regulations. The Small UAV Coalition has a diverse membership that have all have a keen interest in the commercial use of drones, inclduing AirMap, Amazon Prime Air, Google[x], Intel, Kespry, PrecisionHawk, Verizon Ventures, Aerware, AGI, Flirtey, Fresh Air Educators, T-Mobile, and WalMart.

In that letter, the Small UAV Coalition noted that there are currently three pending rulemaking actions regarding drone operations:

Notice of Proposed Rulemaking, Operation of Small Unmanned aircraft Over People

As is the case with most technology, regulations pace far behind what is needed for the technology to evolve and thrive. The technology exists, but without regulations permitting its use, it cannot be utilized.

As the Small UAV Coalition noted in its letter, without regulations that permit beyond visual line of sight, operations over people, and nighttime operations, the commercial UAS industry in the United States risks stalling and falling behind other countries, such as those in the European Union, China, and Australia.

With the rapid expansion of the drone industry, the FAA has granted more than 4,200 special permits for companies wanting to utilize drones to advance innovations in their businesses.[1] According to the Association for Unmanned Vehicle Systems International, companies representing more than 600,000 jobs and $500 billion in economic impact were among the first 1,000 exemptions granted.[2] One such innovation is already being seen and tested in the area of real property inspections. The use of drones for real property inspections is transforming industries like insurance and telecommunications.

State Farm was the first insurer in the United States to receive Federal Aviation Administration (“FAA”) permission to test Unmanned Aircraft Systems (“UAS”) for commercial use.[3] Insurance giants American International Group Inc. (“AIG”), United Services Automobile Association (“USAA”), and Allstate followed suit, each receiving approval from the FAA to use UAS to conduct property inspections in the United States.[4] Using UAS for property inspections allows State Farm, AIG, USAA, and Allstate to inspect areas that are difficult or dangerous for humans to inspect, such as wind farms, condemned buildings, damaged roofs and collapsed buildings.[5] The insurance companies hope that drone technology will allow them to utilize UAS as remote insurance inspectors, allowing them to inspect properties more safely, quickly and easily. In addition, Allstate believes that “[d]rones used in the claims process could provide faster payments to customers, especially in an area where widespread damage occurs quickly.”[6]

However, the FAA limits how State Farm, AIG, USAA, and Allstate can use UAS in their operations.[7] For example, the insurance companies can fly drones over private or controlled-access property only with the permission from the owner or other authorized party.[8] Therefore, the insurance companies need to have permission from all landowners they fly over.[9] In addition, flights must take place away from airports and most urban areas and must be during the daytime.[10] Such restrictions will certainly make it more difficult for insurance companies to use drone technology to its full potential. The restrictions, however, strike a balance between the commercial use of drones and the FAA’s concerns regarding privacy and safety.

Similarly, telecommunications firms hope to be able to utilize UAS to inspect more dangerous or difficult inspections.[11] To achieve this,

Aerialtronics joined efforts with Neurala and NVIDIA to demonstrate a UAS system that can visually inspect a cell tower and recognize the equipment mounted on the mast.[12] In the near future, such a system will be able to automate the documentation of assets and assess the mechanical functionality and condition of the cell tower to identify rust and other defects.[13] In a recent blog posting, John Donovan, the chief strategy officer for AT&T, wrote about his excitement for the future of AT&T and drone technology.[14] AT&T recently launched the trial phase of its national drone program, which is currently using drones to perform aerial inspections of its cell towers.[15]

Looking forward, AT&T hopes to use Flying Cell on Wings to provide LTE coverage at large events and rapid disaster response.[16] In this way, AT&T will be able to provide coverage when cell towers are usually clogged by increased traffic.[17] The future use of drones is also expected to expand beyond the insurance and telecommunications industries. Drones will likely be used by governments and companies to safely inspect bridges, buildings, wind turbines and other infrastructure.[18]

Our UAS team at Fox will continue to monitor the use of drones in property inspections and the restrictions placed on such usage by the FAA.

[4] Leslie Scism & Jack Nicas, The Wall Street Journal, Insurers Get Approval to Use Drones: AIG, State Farm and USAA will be able to use the unmanned aircraft to do inspections, Apr. 8, 2015, available at http://www.wsj.com/articles/aig-receives-faa-approval-for-drone-use-1428499777 [hereinafter “Scism & Nicas”]; Cameron Graham, Technology Advice, 3 Companies Using Drones to Improve Inspections, June 23, 2015, available at http://technologyadvice.com/blog/information-technology/companies-using-drones-for-inspections/ [hereinafter “Graham”].

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